This month, Drake and his producers won a key battle in the fight for fair use. But what exactly is fair use? And what does it mean for artists and producers moving forward?

As artists and creators, we constantly take inspiration from our peers and our idols. But do you ever wonder, where is the line? How much is too much? Samples and mashups are commonplace in music and especially in hip-hop. Chuck D. once said: “We thought sampling was just a way of arranging sounds […] to blend sound. Just as visual artists take yellow and blue to come up with green, we wanted to be able to do that with sound.” The art of sampling is woven into the founding story of hip-hop along with the legal challenges that came with its commercial success.

Which brings us to the Drake case.

A quick primer: Drake’s song “Pound Cake” opens with Jimmy Smith (noted jazz musician) talking, which comes from Jimmy Smith’s Rap. The issue arose when Drake edited the line “Jazz is the only real music that’s gonna last. All the other bullshit is here today and gone tomorrow” to omit the word jazz. The Smith’s estate filed suit in 2014, alleging that Drake had violated its copyright to “Jimmy Smith Rap,”saying it would not have granted a license to the composition because “Jimmy wasn’t a fan of rap.” As a defense, Drake and his producers argued that their use of the sample was allowed under fair use.

Fair use allows artists to argue that samples pulled from an original work are allowed when the new product is “transformative” or used to advance an important public purpose or contribution to the arts. In these cases, courts will look at a number of factors including 1) how much of the original work was sampled; 2) was the use transformative; and 3) was there undue harm to the original owner. It’s a murky and uncertain path, one in which millions in legal fees have been accrued in attempts to figure it out.

What makes the Drake case so significant (other than Drake being a high-profile name), is that rulings of copyright fair use are rare in the realm of songcraft. Not often do judges parse the meaning of music to figure out whether there’s a transformative purpose. The court found that the message of the “Jimmy Smith Rap” is one about the supreme and prolific nature of jazz over other genres of music. On the other hand, “Pound Cake” sends a counter message — that it is not jazz music that reigns supreme, but rather all “real music,” regardless of genre.

Hip-Hop and Copyright — It’s complicated…

The decision signals an important moment in the long, complex history that hip-hop has had with copyright laws. In their book, Creative License, Kembrew McLeod and Peter DiCola explain that during the “sampling golden age,” hip-hop artists were given free rein to create, as record companies dismissed hip-hop as merely a fad. The art of sampling was used to add context to a lyric’s pop culture and political commentary. Public Enemy’s “Can’t Truss It,” off their 1991 album Apocalypse 91: The Enemy Strikes Black, remains an important and relevant example of how the layering of samples and lyrics create a larger and more powerful message. This era ended with two landmark cases; The Turtles sued De la Soul, which was eventually settled, and Grand Upright Music successfully sued Warner Brothers Records over Biz Markie’s “Alone Again,” which sampled Gilbert O’Sullivan. The infamous court opinion began with “Thou Shalt Not Steal, ” and went so far as to suggest that rapper Biz Markie and his label should face criminal charges for their unauthorized use of the sample.

To go from “Thou Shalt Not Steal” to the recent win for Drake, we may be entering into a new era for hip-hop. One in which the courts are willing to take a closer look at how artists can use sampling as a way to add commentary and bring depth to their creative expression.

Take Creative Control is a community of entrepreneurs, creatives, innovators, attorneys and policy experts working to empower creators of color by providing knowledge of and access to intellectual property expertise. Check out some of their related one pagers: Copyright Decoded, and Fair Use Decoded

Kim Tignor

Author Kim Tignor

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